656214 NB Ltd. v Venmar Ventilation ULC, 2023 NBKB 91
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By: Weston McArthur
The Plaintiffs owned property in Fredericton, New Brunswick, that suffered fire damage on December 17, 2017. In the Statement of Claim, the Plaintiffs alleged that Venmar Ventilation ULC (Defendant Venmar) had negligently manufactured a Heat Recovery Ventilator ( HRV). The Plaintiffs also stated that Defendant Venmar failed in its duty to warn about the supposed dangers of the HRV unit that was installed in their building. The Plaintiff also alleged that Von Weise USA (Defendant Von Weise), who supplied the motor in the HRV, and E.G. Stairs (Defendant Stairs), who performed upgrade work on the HRV, had failed in their duty to warn with respect to the alleged dangers inherent with the HRV.
The Plaintiffs sought summary judgement against the defendants on the grounds of the alleged failure to warn. The central question in a motion for summary judgment is “whether there is a genuine issue requiring Trial” [para 63]. If not, a matter can be disposed of through summary judgment. However, it must be very clear to a judge that they can “make necessary findings of fact and reach a fair and just determination on the merits” [para 63].
Partial summary judgment is also a possible outcome, and Justice Morrison outlined the criteria that need to be satisfied for a court to grant partial summary judgment. He wrote that “(1) the claims must be clearly severable; and, (2) the summary judgment must have the potential to add litigation efficiency” [para 60].
Justice Morrison also noted that in the Supreme Court of Canada’s decision in Hyrniak v Mauldin, 2014 SCC 7, the Court called for a “cultural shift” in how lower courts use summary judgement, pressing them to be more daring [para 63]. This is in large part to alleviate the access to justice crisis plaguing the Canadian legal system.
In the motion for summary judgment brought by the Plaintiffs, they wanted the Court to find that the Defendants had breached their duty to warn. Justice Morrison declined to do so. The factual evidence was too hotly contested. Justice Morrison determined that a full Trial would be needed to solve the factual issues in dispute between the parties.
In his decision, Justice Morrison also provided commentary on the application of partial summary judgment to this matter. Even if the duty to warn issues were resolved, he noted that the “cross-claims will survive and a trial of those issues will proceed” [para 59]. He explained that “partial summary judgment is the exception”, and stressed that partial summary judgment should be discouraged where there were not “a meaningful reduction in the length of the ultimate trial” [para 61]. This decision helps illuminate the partial summary judgment threshold.